98-002717 Bans N. Persaud vs. Board Of Accountancy Status: Closed Recommended Order on Wednesday, September 16, 1998.

Summary: Challenge to failing grade on finance and accounting part of Certified Public Accountant Exam recommended to be rejected.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BANS N. PERSAUD )

)

Petitioner, )

)

vs. ) Case No. 98-2717

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF ACCOUNTANCY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by the Division of

Administrative Hearings, through its Administrative Law Judge,

David M. Maloney, on July 23, 1998, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Bans N. Persaud, pro se

310 Ninety-Second Avenue North

St. Petersburg, Florida 33702

For Respondent: R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Whether Petitioner, Bans N. Persaud, should be awarded a

passing grade on the "Financial Accounting" part of the Certified

Public Accounting examination given on May 7-8, 1997.

PRELIMINARY STATEMENT

On June 15, 1998, the Division of Administrative Hearings

received a letter from the Department of Business and

Professional Regulation under the signature of R. Beth Atchison,

Assistant General Counsel. The letter constituted a request that

an administrative law judge be assigned to a case pending before

the Board of Accountancy in the Department styled: Bans N.

Persaud v. Department of Business and Professional Regulation,

Accountancy Board , OGC 98-3368.

Attached to the letter was a copy of what the letter

referred to as "a petition for formal hearing," from Mr. Persaud.

Indeed, the petition consisted of a letter from Mr. Persaud

stating:

This is an appeal against my Part 4 of the

May 1997 CPA examination result. My score

was 62 as compared to my score in November

1995, which was 63. I had asked for a review

through NASBA and the result was "NO CHANGE."

I am making this appeal because I am very

certain that I passed this examination.

Letter of Bans N. Persaud, October 31, 1997. Also attached to

the Department's letter of June 15, 1998, was an examination

report of the Bureau of Testing at the Department. The report

showed that Bans Narayan Persaud had passed the Audit, Accounting

and Reporting, and Law Exam parts of the CPA Exam in May of 1997

with scores of 75 in each part but that he had failed the

Financial Accounting part of the exam with a score of 62.

The case was assigned Case No. 98-2717 and Administrative

Law Judge Arnold Pollock was designated to conduct the

proceedings. Prior to hearing, the undersigned was designated to

conduct the proceedings in the place of Judge Pollock.

The case proceeded to final hearing as noticed on July 23,

1998 in St. Petersburg, Florida. Both parties presented one

witness. Mr. Persaud testified in his own behalf and Respondent

presented the testimony of Ahva Goldman. Petitioner's Exhibits

numbered 1, 2 and 3 were all received into evidence.

The transcript of the final hearing was filed on August 10,

1998. The Respondent's proposed final order was received on

August 24, 1998. Petitioner did not file a proposed recommended

order but did make a number of post-hearing ex parte filings

which have been published and placed on the record pursuant to

Section 120.66(2), Florida Statutes.

FINDINGS OF FACT

1. Petitioner, Bans N. Persaud, took the Certified Public

Accountant Exam in May of 1997.

2. The Department of Business and Professional Regulation's

Bureau of Testing notified Petitioner by Examination Grade Report

dated August 4, 1997, that he had earned a score of 75.00 which

was a passing grade on three parts of the exam: Audit,

Accounting & Reporting, and Law Exam. The report informed him

that, "CREDIT ON PASSED PARTS HAS BEEN GRANTED."

3. The report also informed Mr. Persaud that he had failed

the Financial Accounting Part of the exam. On that part, he

received a score of 62.00 when a minimum passing score was 75.

4. Petitioner, "very certain that [he] passed this

examination," filed a letter of appeal with the Department,

treated by the Department as request for a formal administrative

hearing.

5. During the course of pre-hearing procedures, Mr. Persaud

requested that he be allowed to audit the grading of the

examination. The Department responded by pointing to Section

455.217(2), Florida Statutes, which states in pertinent part,

The board . . . shall make available an

examination review procedure for

applicants . . . . Unless prohibited or

limited by rules implementing security or

access guidelines of national examinations,

the applicant is entitled to review his

examination questions, answers, papers,

grades, and grading key . . .

and the following language of Rule 61-11.012(6), Florida

Administrative Code:

In order to preserve the security and

integrity of the examination, such candidate

shall be permitted to review only the

questions and answers missed on the

examination.

Furthermore, the Department pointed to the following excerpt of

Section 119.07(3)(a), a provision of the public records law,

Examination questions and answer sheets of

examinations administered by a governmental

agency for the purpose of licensure,

certification, or employment are exempt from

the provisions of subsection (1) and s.24(a),

Art. I of the State Constitution [provisions

which require disclosure of public record].

In light of the response, the ruling was made at hearing that the

Department was not required to allow Petitioner to conduct the

requested audit. In fact, it was determined that the requested

audit was a prohibited act under the force of law through the

operation of Rule 61-11.012(6), Florida Administrative Code.

6. Mr. Persaud claimed that without an audit, he would not

be able to prove that he had, in fact, passed the examination.

7. The examination was developed by the American Institute

of Certified Public Accountants, a national organization of

certified public accountants whose function it is to develop,

prepare and grade the "in-force CPA exam." (Tr. 74). As such,

the exam is considered a "national examination," id. , developed

by a national organization. About such exams, the following is

stated in the rules of the Department of Business and

Professional Regulation, Bureau of Testing:

If the examination being challenged is an

examination developed by or for a national

board, council, association or society,

(hereinafter referred to as national

organization) the Department shall accept the

development and grading of such examination

without modification.

Rule 61-11.012(1), Florida Administrative Code.

8. The examination consisted of six questions, two of which

(Questions five and six) were essays. Mr. Persaud received 36

points out of the 60 points available for question one, 2.15 out

of five points available for question two, 4.38 out of five

available for question three, 3.68 out of five for question four,

8.5 out of ten for question five, and 5.5 out of ten for question

six, for a total of 62 points.

9. Mr. Persaud pointed to his background as a person of

Indian descent (that is, from the subcontinent of India) who

immigrated from Georgetown, Guyana, to the United States where,

in 1984, he received U.S. citizenship. Mr. Persaud felt that

lack of points on the essay for English composition, grammar and

expression were due to prejudice and incorrect because of the

excellent state of his English. During the hearing, it was

obvious that Mr. Persaud's spoken English, although at times

difficult to understand because of pronunciation, is otherwise of

high quality. Whatever the state of his written English,

however, had he received all points available for the essay

questions he still would have failed the Finance and Accounting

part of the exam with a score of 68 when a passing score of 75

was necessary.

10. It was therefore incumbent on Mr. Persaud to show more

than just that improper grading of English (which he did not

show) in the essay portion of the exam led to the failing grade.

Mr. Persaud made no attempt to do so. To the contrary, Mr.

Persaud did not show that the examination was faulty, or that it

was arbitrarily worded, or that the answers to challenged

questions were capriciously graded or that he was arbitrarily

denied credit through a grading process of the challenged

questions devoid of logic or reason. In fact, Mr. Persaud does

not appear to have ever identified the questions among those that

he missed that were under challenge. He simply insisted that he

had passed the exam.

11. Rather than challenge specific questions for which he

was not given credit or the grading of the answers to those

questions, Mr. Persaud took a different tack. He testified that

immediately after passing parts 3 and 4 of the CMA in 1996, he

was suddenly bombarded on a daily basis by the noise of planes

from the international Airport who were assisted in some way by a

Village Inn not far from his house. When he complained to the

authorities, they stated that they did not fly anywhere near his

house. He complained of other noises and pressures to which he

was subject while trying to study and identified them as

"[p]lanes at four o'clock," (Tr. 48) and a "12 part air

conditioner." Id. He also complained that his computer had been

sabotaged and produced documents he had composed where the word

"and" appeared in a sentence when his choice, and the more

appropriate word, would have been "but." (Tr. 55).

12. After this line of the challenge to the exam had been

exhausted at hearing, Mr. Persaud was asked to identify the

questions among those he missed that he now challenges as well as

any of their answers. Aside from testimony about written English

on the Essay questions, Mr. Persaud made no reference to

individual questions. He chose to maintain his position that he

had passed the test.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding. Section

120.57(1), Florida Statutes.

14. Mr. Persaud failed to carry the burden of proof which

is his in this proceeding. He failed to demonstrate that his

answers to the questions were deserving of more credit or were

arbitrarily or capriciously graded or that the questions,

themselves, were somehow misleading or faulty. Once Mr.

Persaud's request for an audit was denied, he made no attempt

other than to assert that his English had been improperly graded,

to challenge any specific question or bolster any of his answers

as correct when determined to be incorrect. As for his claim

with regard to the English portion of the essays, Mr. Persaud

made no attempt to produce the questions or the answers for an

analysis. In contrast, the Respondent put on evidence that Mr.

Persaud received the correct grade for the Finance and Accounting

part of the exam. Mr. Persaud's challenge, therefore, fails.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is recommended that a final order be entered denying

Petitioner's challenge to the grade he received on the Financial

Accounting part of the CPA Exam administered in May of 1997.

DONE AND ORDERED this 16th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Fil ed with the Clerk of the

Division of Administrative Hearings

this 16th day of September, 1998.

COPIES FURNISHED:

R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Bans N. Persaud

310 Ninety-Second Avenue North

St. Petersburg, Florida 33702

Lynda L. Goodgame, General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Martha Willis, Executive Director

Division of Certified Public Accounting

Department of Business and

Professional Regulation

4001 Northwest 43rd Street, Suite 16

Gainesville, Florida 32606

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order must be filed with the agency that will

issue the Final Order in this case.